Citation Nr: 21011668 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-42 617 DATE: March 2, 2021 ORDER Entitlement to a 50 percent rating from September 20, 2010 to February 20, 2015, for a migraine headache disorder is granted. REMANDED Entitlement to a rating in excess of 50 percent from September 20, 2010 to March 13, 2017; and in excess of 70 percent from March 13, 2017 to April 2, 2019, for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, for the period from September 20, 2010 to February 20, 2015, the Veteran’s migraines more closely approximate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to a 50 percent rating for migraine headaches for the period from September 20, 2010 to February 20, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1987 to November 1991, and from April 1993 to December 1993. This case comes before the Board of Veterans’ Appeals (Board) on appeal from May 2012, September 2012, and September 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO or AOJ). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a January 2018 Travel Board hearing. A transcript of that hearing is associated with the claims file. This claim was previously before the Board in November 2019 when the Board denied a compensable rating for service-connected migraine headache disorder from September 20, 2010 to February 20, 2015. The decision also granted entitlement to a 50 percent rating for migraine headache disorder from February 20, 2015, forward; and remanded entitlement to a rating in excess of 50 percent from September 20, 2010 to April 2, 2019; and in excess of 70 percent thereafter for service-connected PTSD. The Veteran appealed the Board’s November 2019 denial of entitlement a compensable rating from September 20, 2010 to February 20, 2015 for a migraine headache disorder to the United States Court of Appeals for Veterans Claims (CAVC/Court). In September 2020, the Court granted a September 2020 Joint Motion for Partial Remand (JMPR) vacating that portion of the November 2019 Board decision that denied entitlement a compensable rating from September 20, 2010 to February 20, 2015 for a migraine headache disorder, and remanded this issue to the Board for further proceedings consistent with the JMPR. The Court did not disturb the Board’s grant of entitlement to a 50 percent rating from February 20, 2015, forward, for a migraine headache disorder. With regard to the remanded issue of increased rating for PTSD, while on remand, and after additional development, the RO issued a September 2020 rating decision that assigned an earlier effective date of March 13, 2017 for the 70 percent rating assigned for PTSD, and assigned a 100 percent rating for PTSD from April 2, 2019, forward. It is generally presumed that the Veteran is seeking the maximum benefit allowed by law and regulation. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the Veteran’s claim for increased rating for PTSD remains active for the period from September 20, 2010 to April 2, 2019. Id. All matters have now returned to the Board for further appellate action. Entitlement to a 50 Percent Rating from September 20, 2010 to February 20, 2015, for a Migraine Headache Disorder Service connection for a migraine headache disorder was awarded in the September 2012 rating decision on appeal. An initial noncompensable rating was assigned effective September 20, 2010 (date of claim). A higher 50 percent rating was awarded in the November 2019 Board decision effective from February 20, 2015. The Veteran contends that a higher rating is warranted during the period prior to February 20, 2015 as his migraines have manifested very severe and frequent prostrating attacks that leave him unable to function throughout the entire claims period. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation is already established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection, and consideration of the appropriateness of “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran’s migraines are currently evaluated under Diagnostic Code 8100. This diagnostic code provides for a noncompensable rating with less frequent attacks; a 10 percent rating with characteristic prostrating attacks averaging one in 2 months over the last several months; a 30 percent rating with characteristic prostrating migraine attacks occurring on an average once a month over the last several months. A maximum scheduler rating of 50 percent is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board finds that a maximum 50 percent evaluation is warranted for the Veteran’s service-connected migraine headache disorder for the period from September 20, 2010 to February 20, 2015. In this regard, while outside the appeal period, it is important to note that in a March 2002 VA treatment record, the Veteran reported headaches, approximately 3 times per week since 1990. An August 2010 VA treatment record noted the Veteran’s report of headache pain. A subsequent August 2010 VA treatment record indicated the Veteran was referred for a CT scan due to frequent headaches. An October 2010 private physician’s progress record also noted migraines. A February 2011 VA treatment record indicated the Veteran reported experiencing migraines, loss of appetite, and difficulty sleeping since 1991. The Veteran’s current medical problems/review of symptoms included headaches. See February 2011 VA treatment record. A July 2012 VA examination noted the Veteran’s headache symptoms to include headache pain on both sides of the head worsening with activity. The Veteran’s non-headache symptoms associated with headaches included nausea. The examiner noted the Veteran’s report that he does have prostrating attacks of migraine headache pain with a frequency of less than once every two months. The examiner added the Veteran only described one prostrating headache. The examiner noted no impact on the Veteran’s ability to work as the Veteran kept going to work in spite of his headache pain. In a September 2012 notice of disagreement, the Veteran wrote that he has experienced frequent headaches, amongst other disabilities, since service. A December 2012 counseling record listing circumstances that could contribute to a significant impairment for employment included the Veteran’s migraines. In his October 2014 substantive appeal, the Veteran wrote that he suffers from frequently prostrating and prolonged migraines and headaches. He wrote that he suffers from an average of two to three migraines a month which have become more frequent. He reported having to stay home without pay because he would use up all sick time. A November 2014 VA treatment record noted the Veteran’s report of frequent headaches. A June 2015 VA treatment record, while outside of this period on appeal, once again documented the Veteran’s report of migraine headaches occurring three to four times per week with nausea and vomiting. The record noted the Veteran’s report of headache pain that is felt on the right side with a vise grip sensation. He reported light sensitivity, noise sensitivity, and occasional aura. Throughout the entire course of the appeal, the Veteran has demonstrated consistent reports of migraines and impact of his headaches upon his economic adaptability. Of note, the August 2010 referral for a CT scan indicates a frequency of headaches that warranted diagnostic testing. Additionally, the Board notes that while the July 2012 VA examiner addressed the onset of the Veteran’s migraine headache disorder, there was no discussion of the course of the Veteran’s condition. Specifically, there is no discussion of the August 2010 referral for a CT scan, the February 2011 record documenting the Veteran’s report of migraines since separation from service, or the December 2012 record noting migraines contributed significant impairment to employment. To that end, the evidence of record and reports by the Veteran are inconsistent with the July 2012 VA examination finding that the Veteran does not have very frequent completely prostrating and prolonged migraine attacks that are capable of economic inadaptability. In addition, the Board notes that the Veteran is competent to report the observable symptoms he experiences through his senses, such pain, nausea, depth perception affect, and sensitivity to noise and light. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds that evidence is the most persuasive and outweighs the July 2012 VA examiner’s findings regarding the severity and impact of the Veteran’s migraine headache disorder. Based on the above, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s migraine headache disorder most nearly approximates very frequent completely prostrating and prolonged attacks during the period from September 20, 2010 to February 20, 2015. The record does not necessarily establish the presence of severe economic inadaptability due to the service-connected migraine headache disorder. However, the frequency, severity, and type of symptoms associated with the migraine headache disorder, to include frequent bouts of nausea, most nearly approximates the criteria associated with a 50 percent rating for the period from September 20, 2010 to February 20, 2015. A 50 percent evaluation is the maximum schedular rating for migraines under Diagnostic Code 8100 and a higher rating is not possible under this diagnostic code for this period. The Board has considered whether there is any other schedular basis for granting a higher rating for the period from September 20, 2010 to February 20, 2015, but has found none. Consideration has been given to the Veteran’s contention that a separate rating is warranted for nausea. However, in retrospect, a recent September 2020 VA opinion determined that the Veteran’s nausea was a symptom of his service-connected migraine headache disorder, and not a separate and distinct disability. The examiner indicated that while in service, the Veteran sustained a loss of consciousness when a vehicle next to his was blown up. Upon returning from the deployment, he was in a motorcycle accident that cracked his helmet and resulted in loss of consciousness, concussion, and three days in the hospital. The examiner found that the Veteran suffers from migraine headaches. The examiner noted the Veteran experienced nausea and vomiting every time when he has migraine headache episodes. VA and private reports showed the Veteran has symptoms of nausea and vomiting, and sensitivity to light and sound. On examination, the Veteran reported his nausea and vomiting just occur after his headache happens which last until his migraine headache is gone. He has no GI symptoms between migraine episodes. The examiner concluded that the Veteran’s nausea was secondary to headaches and due to or the result of migraines. Thus, the Board finds that a separate evaluation is not warranted for nausea as the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. In sum, the Veteran’s migraine headache disorder warrants a 50 percent rating for the period from September 20, 2010 to February 20, 2015. To this extent, the claim for a rating of 50 percent, but no higher, for the period from September 20, 2010 to February 20, 2015, is granted. REASONS FOR REMAND 1. Entitlement to a Rating in Excess of 50 Percent from September 20, 2010 to March 13, 2017; and in Excess of 70 Percent from March 13, 2017 to April 2, 2019, for PTSD is Remanded. Private treatment records obtained pursuant to the Board’s November 2019 Remand include a March 2019 treatment record indicating the Veteran was undergoing counseling through the Vet Center in Tacoma. Unfortunately, treatment records from the Vet Center in Tacoma are absent. As these treatment records might disclose the nature and severity of the service-connected PTSD, they are potentially relevant to the increased rating claim on appeal and should be secured on remand. 38 C.F.R. § 3.159 (c); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). 2. Entitlement to a TDIU is Remanded. The Board also finds that an inferred claim for a TDIU has been reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009) (When evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU is part and parcel of the claim for benefits for the underlying disability). The Board fully understands that the Veteran has been awarded a 100 percent rating for his PTSD from April 2, 2019, and that special monthly compensation (SMC) has been assigned from that date as well. However, the issue of entitlement to TDIU prior to April 2, 2019 is still pending to the extent that it is intertwined with the increased rating claims that have been on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). In this regard, a remand is necessary to allow for the AOJ’s implementation of the increased 50 percent rating for a migraine headache disorder which applies for the period from February 20, 2015, forward, as was granted in the November 2019 Board decision, and the increased 50 percent rating for a migraine headache disorder which applies for the period from September 20, 2010 to February 20, 2015, as was granted in this decision. Additionally, adjudication of the TDIU benefit also requires consideration of the impact of all service-connected disabilities on a Veteran’s ability to secure and follow substantially gainful employment. As there remain open and outstanding claims relating to the Veteran’s PTSD disability which may impact that determination, it would be premature and potentially prejudicial to the Veteran to adjudicate the TDIU claim at this time. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).   The matters are REMANDED for the following action: 1. Contact the Vet Center in Tacoma and obtain and associate with the claims file all outstanding records of treatment of the Veteran, dated from September 20, 2010 to the present. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Send the Veteran an application for increased compensation based on unemployability (VA Form 21-8940) and request that he complete and return the form. After conducting any additional development deemed appropriate, adjudicate the issue of entitlement to a TDIU. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.